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The Election and the (Culture) War

What does the 2006 election mean for Catholic participation in American political life? I think this country is sick of endless war literal war and metaphorical war. Political commentators say that the midterm elections were a referendum on the war in Iraq, which is spilling the blood of both Americans and Iraqis with no clear political objective and no clear exit strategy. In my view, it is also a referendum on the culture wars: the take-no-prisoners-and-admit-no-doubt strategy of the Religious Right, which ended up being nothing more than a pathetic mirror image of the same strategy used by the secular Left twenty years earlier. I hope that the resounding defeat of Rick Santorum signals the end of this way of rhetorically framing controversial moral and social issues in both the Catholic Church in America and in American political life more generally. The way the theocons framed and defended the Iraq War was strikingly consonant with their framing of controversial domestic issues. I think I hope the viewers are saying that its this prophetic (and perhaps apocalyptic) frame that has to go.

1. A Manichean world view: its Good v. Evil, the forces of light v. the forces of darkness. And by the way, WE are GOOD.

2. A delight in demonizing the opposition: who could see anything good in the forces of darkness? How could the forces of darkness have any point worth considering whatsoever?

3. An inability to recognize hard questions, and to acknowledge good faith disagreement about difficult moral and political issues. To Catholic culture warriors, the question of stem-cell research, or the Terri Schiavo case, werent even hard questions. The very suggestion that they are hard questions proved your moral turpitude.

4. An ends-justifies-the-political-means mentality. If what it takes to rid the world of Saddam is prevarication on WMDs, so be it. If what it takes to save Terri Schiavo is to violate settled principles of federalism, so be it.

5. An inability to see nuance, or to take into account anything but one moral principle at a time. Abortion is the taking of innocent human life. Nothing else needs to be said. Therefore it should always be illegal, even in cases of rape or incest. If you think the question of the womans consent to sex is at all relevant to the legal status of abortion, youre the enemy.

6. A preference for the stick rather than the carrot after all, you cant fight a war with a carrot. Support marriage by banning gay marriage; dont provide married couples with the social support and other resources they need to make their commitment stick. Be pro-life by banning abortion, not by voting for social services that will prevent unwanted pregnancies or help mothers and fathers make a long-term commitment to raise children.

You cant argue someone out of a culture war mindset on either side. You cant make someone see nuance if they dont want to see it. Its a waste of time to try and do so. But maybe social conservatives who arent culture warriors who see distinctions, who see some good in their misguided political opponents might find a way of working together with social progressives of the same ilk.

For Catholics, I suggest the following:

1. The theological model should be Benedicts Augustinian Deus Caritas Est not John Paul IIs Culture of Life v. Culture of Death. The culture of life v. culture of death language too easily feeds Manichean tendencies present deeply present in our culture.

2. The legal model on abortion and marriage issues should be Mary Ann Glendons Abortion and Divorce in Western Law. It also should be the rhetorical model. It is humane, gradualist, and more concerned with the role of law as a teacher than law as police officer. I quote my colleague Don Kommers's blurb on the back of my copy of the book:

This book is dynamite. It blows to bits the often-heard contention that compromise on abortion policy is impossible in a divided society. The experience of other nations equally sundered along religious and moral lines shows that it is possible to craft an abortion policy marked by compassion for pregnant women and respect for unborn life. The argument of this book is graceful, elegant and persuasive. One reason for its persuasiveness is the authors sympathy for the commitments and concerns of both sides for the abortion controversy. She appeals to their deepest convictions, as well as to the general values of American society, to show that somewhere between the extreme positions of abortion on demand and no abortion at all a sensible and sensitive policy favored by most Americans is to be found.

The book was written nearly twenty years ago. I am not sure that Professor Glendon still endorses its approach. But I think it is worth taking a second look at.

Comments

Ms. Kaveny,You just keep telling yourselves: "WE ARE GOOD." You misinterpret Deus caritas est if you don't think there were stringent judgments in it and that they reflected the current discourse on the culture of life versus the culture of death. Only liberal Catholics who, long ago, abandoned Church teachings in favor of accommodation with the secular barbarians could so easily tag faithful Catholics as Manichaeans. Yes, orthodox Catholics do think there is objective truth and that there are issues that are plainly right or wrong. That does not make us Manichaeans. You are also mistaken if you think that Pope Benedict, whether in Deus caritas est, or elsewhere, is going to compromise on, e.g., abortion policy. He is as committed as anyone to the rights of innocent life. There are no "sides" in the abortion controversy. There is only one side: that of truth. You already gave away your accommodationist hermeneutic when you refer to the fight for the life of Terri Schiavo as a: "violate settled principles of federalism." For your information, calling oneself Catholic is a privilege, not a right. And that privilege is accompanied by the obligation to adhere to Church teachings on life issues, in this case, euthanasia. And that trumps principles of federalism. The same goes for stem-cell research. Again, it is a question, if you choose to call yourself Catholic, of adherence to Catholic moral principles.Before you start calling Pope Benedict into your alliance, please read Deus caritas est again. Obviously, you didn't get the message the first time.

Ms. Kaveny,You probably focused on Pope Benedict's discussion of love of God and neighbor. But remember what the Pope wrote: "In the gradual unfolding of this encounter, it is clearly revealed that love is not merely a sentiment. Sentiments come and go. A sentiment can be a marvellous first spark, but it is not the fullness of love (DCE, #18)."Too often, Commonweal Catholics see love only in terms of emotion and abandon the intellect and the will. Otherwise, how could they support contraception and abortion, same-sex marriage, dissent against Church teaching, etc.? Real love entails the subordination of one's own interests to those of others and this certainly does not happen when one advocates abortion or euthanasia or the break-up of the traditional family via same-sex marriage. Thinking with the Church is the conduit to true love of God [Idem velle atque idem nolle], but Commonweal Catholics spend their time dissenting from Church teaching, not attempting to discern the wisdom in it. You have substituted your own conclusions for the tradition of the Church and secular interests for those of faith. Neither falls under the category of love of God.

I'm not sure about Cathleen Keveny's reading of the election results. Nonetheless, it's very easy to second the comments she makes about what sensible people, of course including Catholics, should avoid in their political practice.

"If what it takes to rid the world of Saddam is prevarication on WMDs, so be it. If what it takes to save Terri Schiavo is to violate settled principles of federalism, so be it. "Do you really think those two situations are at all analogous? And what "settled principle of federalism" do you mean? Federal courts hear cases involving state law all the time -- diversity cases, supplemental jurisdiction, etc. Sure, there may not originally have been a federal question in Schiavo's case, but once Congress got involved, there was, right? What principle of federalism says that Congress can't define the scope of federal question jurisdiction?

Mr. Gallicho,Catholicism is premised on the acceptance of objective truth, personified in Jesus Christ. That is what I meant. It is so stated in the Catechism. The Catechism presumes that those who call themselves Catholic accept this truth. That's all I was saying. I am sorry if you misinterpreted my words.

I just would like to point out that there is a library full of books and documents written by the doctors of the Church, past Popes, clergy, and theologians that examine, dissect, and discuss the interpretation of Church teachings in a quest for deeper understanding and revelation.This analysis and examination continues even today by Church leaders, recent Popes, the current Pope, and others who have made the study of the Word of God their life's work because the quest for deeper understanding and revelation of the eternal God is equally eternal.Perhaps they don't realize the objective truth of the Church's teachings can fit on flashcards and for every issue that can be raised there is one, and only one, possible answer easily pulled from the Catechism and applied without further discussion.Honestly, I don't know why they make it so complicated. Think of the tree lives that could have been saved had they known the simple, objective truth.

Nice try, Donna. However, thinking with the Church to explore the deeper meaning of the Scriptures and Church teaching does not mean continual dissent from Church teachings. That's the difference. Try reading Joseph Ratzinger sometime and see what thinking with the Church can produce. Then read Edward Schillebeeckx and see what continual dissent produces. Two very different things. No one said anything about flash cards or simplistic approaches. It's only dissenters who cannibalize the truth who make ersatz complications.

You are absolutely right, Janice and by no means am I advocating continual dissent from Church teachings.I am, however, suggesting that Church teachings on social and moral issues are in an ever evolving state because our human condition is constantly evolving. This is why the study of Church teachings and God's Word goes on and on and on.So neither am I advocating a rigid, unalterable application of Church teachings to every social and moral situation in every time of the world and under every circumstance.In short, there are gray areas. Try reading Frank Sheed sometime. He's really very good.

I am generally sympathetic but It seems to me that CK's posting itself tends to caricature and is more likely to inflame than persuade those who most need to be persuaded. Let me just comment on one point: Your rightly oppose "A Manichean world view: its Good v. Evil, the forces of light v. the forces of darkness. And by the way, WE are GOOD". The problem is that even those whom this description fits are not likely to recognize it as a fair description of what they are. And I am optimistic enough--this may only last for five minutes--to doubt that many people are really as stupid at this. Is this a fair comment?

This may seem quite trivial in view of some of the fury expressed above, but I would like to register a small protest at the use of "Manichee" as a term of abuse. The Manichee were a serious bunch of people raising serious questions about the nature of God and the world. (No, I don't accept their answers, I'm afraid my view of God is disappointingly Catholic.)Much as I admire Augustine, it's pretty clear he was in no shape emotionally to be fair to a lot of things he had outgrown, and, besides, use of the term takes us away from trying to understand the real origins of the tendency of some among us to divide the world into "good guys/bad guys," a tendency in my experience that is by no means limited to those I disagree with.

Since Janice has raised Pope Benedict's citation of Sallust's Catiline, a man with the morals of Saddam Hussein, I wonder if anyone else has asked if the source, which he specifically cites, is meant to ironize or undercut or create distance from his argument, or if he is just mentioning the most concise and memorable expression of a commonplace of ancient ethics?

Stuart, federal courts do hear state disputes as a matter of original jurisdiction in diversity cases (mostly), but they rarely do so in the context of upsetting the law of a case that has already been reviewed under state (or federal) law. If a collateral dispute (like an enforcement action) over a matter that had been resolved in state court came in front of a federal judge he or she would most likely consider the issues that had already been adjudicated subject to collateral estoppel and would not decide them again. And even more rarely do judges decide issues of state law because Congress has instructed them to hear a specific case that was subject to multiple state hearings, on an issue that is so traditionally a matter of state law (as family and custody disputes of all manner typically are). I worked for a federal judge. I can only guess that a fair proportion of the federal judges in Florida and on the Eleventh Circuit were affronted by even the concept that Congress could intervene in an individual dispute on such blatant terms, without enunciating a general principle of law that would apply to all similar cases. The Schiavo case was extraordinary in that regard.

When I read comments from folks who insist on an "all or nothing" approach to resolving serious disagreements, I am reminded of the old saw that a person who is "dead right" is still dead.Contrary to Janice's assertions, the Catholic Church is much more than a mere catechism. It has an intellectual tradition that has evolved over the years, and dissent is vital to a healthy institution whether it be the Church, a corporation, a government agency, a political party, or whatever. No one person or organization has a monopoly on truth.We can try to find common ground on which to take action, or we can maintain the status quo. Better half a loaf than none. Searching for common ground does not entail compromising one's fundamental beliefs. Rather, it involves acknowledging the inherent goodness of others with whom one disagrees and working together to find consensus, i.e., the kind of resolution/disagreement that all interested parties can live with.A "head in the clouds" approach simply won't work. And, of course, catechesis is not theology. Reactionary Catholics need to understand that their self-righteousness is a big "turn off" and will never advance the pro-life cause.

Is it a caricature? I honestly don't think so. If you read my Prophecy and Casuistry: Abortion, Torture, and Moral Discourse (Villanova Law Review), I think you'll find ample citations of the use of the culture of life v. culture of death rhetoric to demonize people who might disagree on strategy, or facts, but not ultimate moral principle. I have argued in an earlier column that people who don't think an individuated human life begins until after the possibility of twinning and recombination occurs -- people like Paul Ramsey -- shouldn't be viewed as the minions of the culture of death. Yet that is how Archbishop Burke presented that view in many public statements. Ironically, he put all his eggs in one basket: there are many good reasons to oppose stem cell research that don't depend on the status of the very early embryo, that are developed in the President's Council of Bioethics Report. On Terri Schiavo - do you really think in the heat of the case that there was room for a careful argument that 1) intentional killing is always wrong; 2) there is a presumption in favor of artificial nutrition and hydration; 3) this presumption can and should be overcome in this case, in light of the whole medical moral teaching on ordinary and extraordinary means. Was there room for careful, rational consideration of a situation which brought into play several strands of catholic teaching on medical moral issues? Was there room for the kind of discussion they had at Fordham--http://www.fordham.edu/academics/programs_at_fordham_/center_on_religion... think one of the reasons there wasn't much room was the overheated "culture of life" "culture of death " language. The Catholic right didn't see it as a dispute about how to apply a nuanced set of casuistical principles to highly specific circumstances.On the war-- I remember the Republicans denouncing any criticism of it as being unpatriotic.Think back to the last election. Those of us who were "hold your nose and vote for Kerry" voters -- for precisely the reasons that have come to fruition in this election, were told by our fellow Catholics that it was if we were voting for slave proponents or Nazis. Until he got his doctrine of cooperation with evil straight, Archbishop Chaput said it was a mortal sin. I honestly don't recall any Catholic saying it was a mortal sin to vote for Bush. I don't think you can argue rationally with prophets; rhetorically, it's an impossibility, because they are saying that you don't acknowledge the basic premises necessary for an uncorrupted conversation. But I think people who are tired of prophecy on the left and the right can work together.

The loose use "Manichean" is no worse than the similar dismissive use of "Byzantine" or for that matter "Mediaeval".One could probably compile a longer list.As for the morals of Catiline as portrayed by Sallust in his monograph, I don't know if he is quite in the class with Saddam Hussein. But be that as it may, I doubt that in quoting the tag "idem velle atque idem nolle ea demum firma amicitia est", which is in Catiline's mouth amounts to "what is good for me is good for you and what is bad for me is bad for you" , Benedict had any intention to ironize. Irony is not common in papal encyclicals. Can anyone come up with an example?

Cathy Kaveny,I did use the word "caricature" in speaking of the figure you characterized taken as a whole. But I have long despised the culture of life/culture of death phraseology. It combines opacity of concept with reprobative intent in a way that is designed to alarm rather than to inform, a style that is all too common in language of those who know their ideas, once dissected, cannot bear much scrutiny.

I wasn't going to get into the Terry Schiavo thing again. Anyone who knows me knows this is a very sore topic for me, but CK asked a good question."Was there room for careful, rational consideration of a situation which brought into play several strands of catholic teaching on medical moral issues?"Not only was there room for such careful, rational consideration, it actually took place!Read the testimony of Father Gerard Murphy:http://www6.miami.edu/ethics/schiavo/doc_files/Testimony_of_Father_Gerar... Murphy is a RC priest well schooled in theological and practical pastoral matters with a history of involvement in end of life issues. He has written and published material on the topic of the end of life with the full backing and sanction of the Church.Father Murphy gave a well reasoned, well educated opinion on Terry Schiavo way back January, 2000. His findings were deeply rooted in Church teachings on end of life and extraordinary means.Father Murphy had no problem with supporting the decision to remove the feeding tube at that time.And yet once the matter became public, once the gov't got involved, all of a sudden Father Murphy's knowledgeable assessment of the situation was buried. If you came in late on the story you would think the Church had only one way of looking at the end of life and that was to hang onto it for all you were worth at all costs because it would be UNTHINKABLE that anyone should seek to move into God's presence even if their skull was filled with nothing more than gray soup and a brain stem running on impulse power. Meanwhile, a thoughtful, compassionate priest who did his job thoroughly and with care was cast aside as though everything he said didn't amount to a hill of beans. This is what happens when people try to apply Church teachings with a "there's only one side" mentality.

If I'm wasting valuable time, Grant Gallico should feel free to shush me.But -- Manichee isn't really like "Medieval" or "Byzantine" (both of which, by the way, are commonly used in ways that are both ignorant and designed to forestall thought), it's more like "Jew" as I have heard it used as a verb. But the more important point is that it is not a useful analytic model for the division of the world into the right thinking/non right thinking or good/bad that is so prevalent in our thought.I guess I didn't mean that Benedict was being ironic (maybe I was indulging in wishful thinking that he was!) I was wondering, since his classical learning is massive and he referenced the source of the quote, if he didn't have some double sense in mind for those who are aware of the source -- like "even the genuinely evil are aware of the validity of this point." I would welcome instances of papal irony. Best I can think of is the guy that placed on the index an edition of Voltaire to which he had written the introduction in pre-papal days.I'm not too fond of the culture of life/culture of death dichotomy myself, mostly because of the vagueness and self-congratulation that seem to be involved in the "culture of life" part. But I did find some merit in the culture of death part as a criticism of much that is admired in our culture -- as an example the cool guys who exude an air of sexual accomplishment that is built on exploitation of their women and a determination to rely on abortion (on their demand) to maintain their image without the cost a child might bring. Not a challenge for me to avoid that lifestyle, but a challenge not to be impressed.

1) If we should put aside our Manichaean tendencies because of Tuesday's election, as this post argues, should we also keep them in readiness for the time when these electoral results are reversed? 2) I suspect there are many fans of Mary Ann Glendon. Is there the slightest chance the Democrats would allow her to be appointed to the federal bench?

Now that is a shock from Mary Ann Glendon. Heresy from one of the leaders of the "gang of four?"If we can give a litmus test I would say that if you always vote along party lines then you are not a thinking objective person. I voted for Reagan the first time because I thought Carter just lost it as president. I voted for D'amato in New York (again the first time) because I felt he at least listened to his constituents.After W I have so much more respect for his father that he resisted the idiots that his son accepted. There were nuances in this election but what was so reassuring was that the country rejected any official playing God. Again, what do you all think about this litmus test? I think it does tell us something.

Does Manichaieism, properly understood, really divide humanity into good guys versus bad guys? I was of the opinion, that it described a war going on within the heart of each human being.That aside, Wikipedia describes Augustine's critique of Manichaeism as follows:Augustine, who was a "hearer" of Manichaeanism for nine years, eventually criticised their beliefs that knowledge was the key to salvation as being too passive and not being able to effect any change in one's life.[Quoting Augustine]I still thought that it is not we who sin but some other nature that sins within us. It flattered my pride to think that I incurred no guilt and, when I did wrong, not to confess it... I preferred to excuse myself and blame this unknown thing which was in me but was not part of me. The truth, of course, was that it was all my own self, and my own impiety had divided me against myself. My sin was all the more incurable because I did not think myself a sinner. {End of Augustine Quote][End of Wikipedia quote]Seems like a pretty rational take to me.

The phrase: idem velle atque idem nolle, is also found in Seneca, Epistulae Morales XX, Sidonius Apollinaris, Ep. III. The entire quotation from Sallust is: Idem velle atque idem nolle, ea demum firma amicitia est. Benedict is not being ironic. He is citing a proverb with a long history. He is putting it here under the rubric of humanity conforming its own desires to those of God.

On Manicheanism and Augustinianism. I might as easily used the word dualism; I didn't mean to start a discussion of ancient religion, but I learned a lot from it.Augustine rejected the view that there were two independent substantive metaphysical and moral principles, good and evil. What he came to see, and I see this thought reflected in Deus Caritas Est, is that good is the only substantive metaphysical and moral principle -- God. Evil is a privatio boni; in the moral order, this issues in a disordering of loves. We love good things, but in the wrong order.If we see people on the other side of the abortion debate, or the same sex marriage debate (what ever side we're on) as fighting for real goods, but in a disordered way, this may make us less likely to demonize them.Not less likely to disagree with them, but less likely to demonize them.I see Benedict's Deus Caritas Est, with its focus on love, and the ordo amoris, as redirecting our attention to this Augustinian strand.I think both sides Democrats and Republicans are in principle capable of being dualist or Augustinian in their approach to the other side. I think the Republicans, as Peter Nixon has said, have been in power for a long time. And I think the rejection of them is a rejection of their way of doing this, not an embrace of the Democrats. I think for Catholics, this is more intense, since one group of Catholics associated themselves with the Republican party, but didn't allow a good faith difference of opnion about what was best for the common good). I am not saying we can't talk about moral issues. I would think citing Glendon and the Pope--hardly heterodox Catholics -- would suggest that. I think the question is how --with what animus and tone. I think there is an enormous difference in how we conduct our conversation if we see those who are our moral and political opponets as promoting evil in itself -- in a metaphycial sense --and I think the Culture of Life Culture of Death language tends, in popular use, to go that way --and seeing our opponts as engaged in a disordered willing of the good.So I agree with Joeseph Gannon's objection to the language of the culture of lfe culture of death. I think it needs to be actively resisted, because it was used to feed a divisive political strategy that I think (hope) Americans have rejected.We want, I think, compassionate conservatism, not combattive conservatism.

It should be kept in mind that when Nancy Pelosi, a devout Catholic, joins the pro-abortion industry and lobby in attacking pro-lifers as extremists, anti-woman, intolerant, etc., she is also referring to the Pope, bishops, and (gasp!) the editors of Commonweal and many of its readers.Still, it will be fun watching the bishops trouble Pelosi's "progressively enlightened" conscience over abortion. We should also remember that elections "settle" matters only until the next election. In 1994, the GOP won control of both houses of Congress. Two years later, the revolution seemed to be fizzling, and President Clinton was easily re-elected. So, yes, the Democrats won big this year. Will they repeat ther performance in 2008 and maybe take the presidency? To quote an old Asia song, "Only time will tell."

I agree with Gene O'Grady that the popular use of "Manichean" is inappropriate, but I do not see that the popular use "Mediaeval" and "Byzantine" is any less so. The latter two especially I think are misused not so much to end discussion as to impress the ignorant, whereas, ironically, they actually display ignorance.I think Augustine learned that no being as such was evil from the Platonists of his time. Certainly this view of evil as privation has pervaded Christian thought, both Eastern and Western. It would be unfortunate if anyone really needed to be reminded of this by Deus Caritas est. I do wish that Benedict had not said there was eros in God. I found that very odd. I would have thought that eros always implied a lack of something or a need for something,Perhaps Janice will explain. I am relieved that Janice as already explained to us that Benedict was not being ironic in quoting Sallust.

It's nice that Kaveny has been reading DailyKos, and other extreme leftists, and is attempting to correct their extreme dualism and demonization of the "other side."Oh...she's not?Could have fooled me.Oh, and CK - good luck with convincing NARAL, NOW and so on to buy into the Glendon approach. When I look at pro-life legislative efforts in this country, I see, you know...gradualism. Parental consent and notification, 24-hour waiting periods and so on. The SD referendum was an exception and not uncontroversial among pro-lifers. And tell me...are the abortion rights folks lined up in support of these gradual, cautionary steps? Would they be on board for a law that even approached the restrictions of most European law? Be honest. The opposition to that kind of thing is not coming from pro-lifers, but from abortion rights activists whom CK is apparently anxious to impress with her broad-mindedness. If she had any integrity, she'd acknowledge this, instead of continuing to shoot snotty, arrogant daggers at folks who are down there in the trenches helping pregnant women and their children, something CK gives no evidence at all of doing. The dualists, I suggest, are the people who, faced with the suggestion that a 13-year old girl's parents be notified if she is having surgery, race to the front of the crowd with signs of bloodied coathangers.

I don't really think anyone in the political framework, Republican or Democrat, is supportive of Glendon's approach. For all I know, Glendon herself isn't supportive of it any more. But I think it's the right approach, and I think, as Don Kommers said, you could get a lot of people to buy into it--not American Life Lobby or NARAL, but a lot of people. My vocation, as a scholar, is to call people's attention to academic writings I think will help. Maybe the Democrats are in a position to hear this. They have a second chance, and they need to move toward the middle on moral issues. I hope so. I am criticizing the conservatives, now, because they were in power for 12 years. And because I think they blew, big-time, the moral issues too -- by the extremism and their rhetoric.

Let me reiterate my agreement with the six guidelines or norms that Cathy sets forth forth in her Nov. 9 remarks concerning responsible political practice.But let me suggest that the ensuing postings concerning Manicheanism strike me as largely beside the point, if the point is indeed discuss how we should practice politics.Cathy sets the aristotelo-Thomistic view of evil as the outcome of a disordered love, as a privation of the appropriate good. This is an alternative to the Manichean claim that evil is the outcome of a struggle between two gods. That's all well and good. Both of them propose to say what evil is and how it comes about. Neither position really addresses the "theodicy" question, namely, why is there any actual evil? The manichean answer says that there's a fight. Why is therre a fight? Just because there are two different kinds of divinity. Not much of an answer to the fundamental why question. The Kaveny answer comes from an elaborate and highly developed reflection on metaphysics. It tells us what evil would be, if there is any evil. It does not tell us why god allows any actual evil.I bring up all this, because I believe it it a mistake to think that the point of political practice is, ideally, to abolish actual evil. As I see it the ultimate point of political practice is to secure the safety and hability of its society and its members.To flesh this out a bit, consider Max Weber's discussion of two different ethics, the ethics of ultimate ends and the ethics of responsibility. The ethics of ultimate ends is the ethics that consists of absolutes that an individual adopts and holds as inviolable, The ethics of responsibility consists of norms adopted by a society to allow its members, who hold a diversity of absolutes to co-exist harmoniously. This is the ethics of political practice. A good way to see what this practice consists in is to look back at the six "norms" that Cathy has proposed on Nov. 9.Now, as Weber saw, there some absolutes that at least some people are prepared to sacrifice everything for, including their own lives. Good politics should always endeavor to avoid forcing these people to be martyrs.To choose martyrdom is the prerogative of any individual, but no one has the right to inflict his or her own absolutes on another. To do that is tyrannical, not genuinely pollitical.Take, for example, the abortion question. Mry as an individual can hold that she is absolutely forbidden to have an abortion. If Mary becomes a political official, her position becomes more complicated. On the one hand, she certainly cannot support a law that would require any woman to have an abortion, say on "eugenic" grounds. But she can only rightly support a criminalization of any action or practice, including abortion, if it is not likely to so disrupt society that it endangers its habitability. And even if Mary is just a voter, she cannot rightly refuse to recognize the propriety of the basic requirement for political officials in non-tyrannical societies namely providing for the temporal well-being of their fellow citizens.Again, i think that talk about "Manicheanism,' vrai ou faux, is at best misleading when one is talking about politics.

Barbara -- in general, you're absolutely right. Still, there are several areas where federal courts essentially review state decisions. Under Section 252(e)(6) of the 1996 Telecommunications Act, for example, federal district courts sit in appellate-style review of decisions from state public utility commissions, including on issues of state law. (This is my area of practice, by the way.) Federal courts hear habeas corpus petitions that, for all practical purposes, review the decisions of state courts. (This review is more limited after AEDPA, of course.) But of course, the federal Schiavo bill didn't even have anything to do with relitigation of state law claims -- it solely concerned jurisdiction to hear claims about the violation of the U.S. Constitution or the US Code. See http://news.findlaw.com/hdocs/docs/schiavo/bill31905.html . Thus, I don't see what is so sacrosanct about the principle that "federal courts should leave state decisions alone," even if those state decisions are called into question only insofar as they might have violated the U.S. Constitution or federal law. To the contrary, the U.S. Constitution contains a Supremacy Clause that guarantees that in any conflict between federal and state law, federal law wins. And I especially don't see what makes the Schiavo bill the equivalent of "prevarication." Prof. Kaveny hasn't defended this equivalence.

Stuart, I see two parallels. Generally, I think that using an unacceptable means to achieve the desired end is common in both cases.I also see the prevarication in the second case here: Congress pretended to do something that it couldn't do.To hear the case --to have time to hear the case -- the federal court had to order the feeding tube be reinserted. To put the feeding tube back in, the standards for a TRO had to be met -a temporary restraining order. One component of the standard was reasonable likelihood of success on the merits.Now, there just wasn't any real way to meet that standard, as federal judges up and down the line found. The statutory schema adopted by Florida incorporated all federal substantive rights here. In Cruzan, the S.Ct. assumed but didn't decide that the incompetent patient can refuse ANH through a surrogate decision maker. One could also say that federal law requires there had to certain procedural safeguards in place to insure against bias, etc. Now, whatever else you say about Shiavo, it was heavily, heavily litigated. So it was hard to say that there was any kind of procedural violation. So, I think, assuming that there were good lawyers who know the TRO standards available to them, Congress did something pretty sneaky: It sent ithe case to the Federal District Court (making itself look good to those agitating for it to do something. but it knew that the TRO standards would mean that the Federal District Court wouldn't intervene.Cathy

This may be beside the point, but I was intrigued enough to look up Janice's reference to Seneca, Ep. Mor. 20.5. What he offers is a definition of wisdom: "Quid est sapientia? semper idem uelle atque idem nolle." He prudently adds: "Non potest...cuiquam idem semper placere nisi rectum." In other words one can only will anything with perfect constancy if what one wills is the right. There is a verbal resemblance to the words Sallust attributes to Catiline, but verbal only. Catiline's amoral definition of firm friendship is quite other than Seneca's definition of wisdom.

Of course there are several instances where federal courts review state decisions. That wasn't what the Schaivo bill did. The Schaivo bill only applied to one person--It extended federal jurisdiction to a matter that had been finally ruled on by state courts. To extend Mr. Buck's example, this bill would be equivalent to the loser in one of his utilities cases going to Congress and obtaining a special bill to reverse the result only in that case. The patent unfairness of this attempted end run is obvious.I'm pretty sure that such an event has never happened in any of his matters. I have never heard of any similar congressional action in all my years in practice. The Schaivo bill is the civil equivalent of a bill of attainder. It can only lead every bad results. The Schaivo bill stands for the proposition that those who are wealthy or influential enough can reverse adverse court decisions through lobbying their congressmen.Thankfully, the violent negative reaction to this stunt and the sound legal rulings by the federal courts will greatly reduce any future attempts to sabotage the legal system.Prevarication--certainly. What is sacrosanct about leaving state court decisions alone is the value of finality. There is a fundamental difference between direct or indirect appeals from state courts to federal courts, on one hand, and an ex post facto private bill attempting to reverse the result of a state court's final decision, on the other.The first is routine, the second is unprecedented.,